Is This Terror on Trial?

Maj. Jon Jackson flew repeatedly to Guantánamo Bay, Cuba, in the past month trying to build a rapport with his client. The veteran military lawyer had been assigned to represent Mustafa Ahmed Hawsawi, a 39-year-old Saudi who is one of five alleged co-conspirators in the attacks of September 11. Jackson says he thought he'd gained Hawsawi's trust during eight meetings—despite his Army uniform. He even brought him a white Arabic robe during one of his visits. But Hawsawi's demeanor changed when he sat in the same Gitmo courtroom with Khalid Sheikh Mohammed, the accused architect of 9/11. At their arraignment last week, Mohammed, sporting a bushy white and gray beard and a white tunic, held a menacing sway over the other four detainees, instructing and even reprimanding them. Hawsawi had indicated he was ready to accept Jackson as his lawyer—but backtracked when Mohammed taunted him: "What, are you in the American Army now?" Jackson says his client was visibly intimidated. "He was shaking," he tells NEWSWEEK.

The start of proceedings against the Qaeda men allegedly responsible for the attacks that killed 2,973 people nearly seven years ago should have been a showcase of American justice. Instead, the hearing was more of a bizarre spectacle, with Mohammed chanting Qur'anic verses and the judge struggling to impose order. Already, Gitmo justice has been tarnished by the detainees' long, secret imprisonment and alleged torture. Critics of the process added censorship to their list of grievances after a security officer shut off the audio for journalists watching the proceedings whenever the defendants mentioned anything about their whereabouts and treatment in the years they were in CIA custody. If all five end up representing themselves (the judge granted the requests to three of them and said he would weigh the other two), the impression of a fair trial in the death-penalty cases will be even harder for Pentagon officials to maintain. It will also give Mohammed and his codefendants just what they want: a stage to denounce American injustice. "After torturing, they transfer us to Inquisition land in Guantánamo," he said at the hearing.

The torture allegation will hang over the trial with or without defense attorneys and could be the issue on which the case turns. Capt. Prescott Prince, Mohammed's military lawyer, told NEWSWEEK before the hearing that he would challenge as inadmissible any evidence submitted by the prosecution that is based on his client's confessions over the years. The CIA has admitted waterboarding Mohammed—pouring water in his nose and mouth until he nearly drowns—and abusing him in other ways. But prosecutors say FBI "clean teams" have reinterrogated the defendants in the past 18 months, providing what they hope the judge, Marine Col. Ralph Kohlmann, will accept as untainted evidence. Prince says it's an exercise in futility. "Once you've been tortured … how can you unscramble the egg?" If the new confessions are OK'd, the government has a strong case, says former chief prosecutor Col. Morris Davis. Without them, he says, prosecutors have a "steep hill to climb."

So far, Kohlmann has shown more patience for the defendants than for their attorneys. While the latitude he gave Mohammed was striking, he was fierce with the defense lawyers, cutting them short repeatedly and ordering them to stop objecting. Nothing better captured the absurdity of the proceedings than the conversations Kohlmann conducted with the defendants to make sure they understood that the U.S. government was prepared to provide them with lawyers "free of charge." Given that the detainees have been locked up for so long with no access to funds, the judge's assurance must have seemed hollow. "The government has tortured me free of charge for all these years," cracked one detainee, Ali Abdul Aziz Ali.

The courtroom theatrics might serve the government in at least one way: if defense lawyers are largely sidelined, the case could proceed quickly. Prosecutors have said they want to get a trial underway by mid-September and wrap it up weeks later—a remarkably brief time for a complex conspiracy case. The November presidential election has long been a target date, says Davis. Since both presidential candidates advocate closing Gitmo, Davis says, the window for staging the military tribunals is rapidly closing. President Bush also wants a verdict before he leaves office, says a senior administration official who didn't want to be named discussing internal matters. Back in 2006, Vice President Dick Cheney counseled Bush to keep Mohammed and the other high-value detainees in the secret prisons to avoid stoking the torture debate. But Secretary of State Condoleezza Rice argued at a key meeting that summer that the perpetrators of September 11 had to be tried in the open: "9/11 happened on the president's watch. We need to make sure that justice is done on his watch," she said, according to the official. Rice won the argument and might now get her wish—if there can be order in the court.

With Mark Hosenball

© 2008